It seems these days there is a very fine line between an innovator and a thief. Google recently was found to be on the innovator side of the line in a lawsuit over its product Google Books. As you may have heard, the U.S. District Court for the Southern District of New York recently held in its summary judgment opinion that Google’s scanning of more than 20 million books and posting them online was “fair use” under U.S. copyright law. See The Authors Guild, Inc., et al v. Google, Inc., No. 05-CIV-8136 (S.D.N.Y. Nov. 14, 2013). This case began nearly a decade ago when Google when began scanning and uploading “snippets” of books online without the permission of the authors and publishers. In 2005, the Authors Guild brought suit against Google seeking $750 per book scanned. As you might imagine, twenty million books at $750 per book adds up pretty quickly ($15 billion to be precise). The two sides sought to settle the matter in 2011 for around $125 million. However, the U.S. District Court judge refused to approve the settlement, holding that it would give Google a ”de facto monopoly” to copy books en masse.
The ruling in this case centered around whether Google’s use of the copyrighted books constituted “fair use.” The doctrine of fair use permits the use of copyrighted works “to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’” One key consideration in determining whether use falls under “fair use” is the extent to which it is transformative. The use of work is transformative where it adds something new or alters the original creation.
The Court’s opinion focused largely on the fact that Google Books was indeed transformative in that it “transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research.” The Court ultimately held that this transformation, which adds value to the original books, along with other factors outweighed any commercial aspect of the use. As such, it granted summary judgement to Google.
This ruling has been hailed by some as a win for the fair use doctrine, tech companies, and society at large. We tend to agree. However, there will undoubtedly be many who view this case as just another instance of the big companies and the court system stepping on the little guy.